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Giroir v. S. La. Med. Ctr., Div. of Hosps - 475 So. 2d 1040 (La. 1985)

Rule:

An amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

Facts:

Earline Giroir, the wife of plaintiff Roy Giroir and the mother of two children, Ricky and Larke, first sought medical treatment at South Louisiana Medical Center (SMLC) in March, 1979, complaining of abdominal pain, nausea and vomiting. After visiting SLMC approximately 14 times, both as an inpatient and as an outpatient,  she underwent gallbladder surgery in February 1980. Even though the pathology report indicated that her gallbladder was not the source of her symptoms, Earline was discharged from SLMC but readmitted two days later due to continuous pain, nausea, and diarrhea, Three weeks later, safter finally being diagnosed with an arterial thrombosis, she underwent surgery again, but the surgery came too late to prevent Earline Giroir's death on March 20, 1980, Plaintiff Roy Giroir, on behalf of himself and as executor of the Estate, filed suit on March 13, 1981 against several physicians and SLMC seeking damages.  On March 23, 1981, ten days after the first complaint was filed and one year and three days after Earline's death, Roy Giroir filed an amending petition adding Ricky and Larke as plaintiffs in both the survival action and the wrongful death action. The amending petition also changed Roy Giroir's capacity with respect to the survival action so that he appeared as an individual rather than as administrator of his wife's estate. Defendants, SLMC and doctors, appealed from the amended petition, contending that the children's claims were time barred.

Issue:

Does the amended petition that seeks to add children as new plaintiffs in wrongful death and survival actions relate back to the filing of their father’s original petition?

Answer:

Yes.

Conclusion:

The court held that the children's claims satisfied the criteria pursuant to La. Code Civ. Proc. Ann. art. 1153 that allowed the amendment to relate back to the date of the original petition. The amended claims arose out of the same conduct set forth in the original pleading of medical malpractice and the resulting death of the children's mother. The hospital and doctors knew or should have known of the existence and involvement of the children due to visitation records and the reasonable possibility that a surviving child of a deceased 55-year-old married woman might later assert a survival or wrongful death claim. The executor and the children were sufficiently related so that the added party was not wholly new. The hospital and doctors were not prejudiced by the amendment in preparing and conducting their defense because the amendment was filed just 10 days following the original petition.

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